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State of New Jersey v. Kimberly S. Alvarez


October 17, 2011


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-01-0175.

Per curiam.


Argued September 27, 2011

Before Judges Fisher and Baxter.

Following a trial by jury, defendant Kimberly S. Alvarez was convicted on charges of second-degree official misconduct, N.J.S.A. 2C:30-2(a) (count one); and third-degree theft by deception, N.J.S.A. 2C:20-4 (count two). On count one, the judge sentenced defendant to a seven-year term of imprisonment, subject to the five-year mandatory parole ineligibility term required by N.J.S.A. 2C:43-6.5(a). Count two was merged with count one. The sentence was ordered to be served concurrently with the sentence on indictment no. 06-12-2704, for which defendant had entered a negotiated plea of guilty.

On appeal, defendant raises the following claims:




We reject the claims defendant advances in Points II and III, and affirm defendant's conviction. As to Point I, we agree with defendant's argument that nothing in the judge's instructions to the jury, and nothing in the wording of the verdict sheet, demonstrates that the jury necessarily concluded that defendant had engaged in any unlawful conduct after April 14, 2007, which is the date the mandatory five-year parole bar of N.J.S.A. 2C:43-6.5(a) became effective. We therefore remand for resentencing, at which time the judge shall eliminate the five-year parole ineligibility term.


From July 21, 2006, to June 30, 2008, defendant was employed by Howell Township (Township) as a clerk-typist in the Office of Housing and Code Enforcement. Among other tasks, she was responsible for processing applications from Township residents or realtors seeking certificates of occupancy, and permits for fences and signs. Application fees were paid either in cash or by check. The procedures in the Code Enforcement Office required the clerk-typist to collect the application fee from each applicant, and to issue a handwritten receipt from one of the sheets in the "receipt book," with a copy of the receipt remaining in the receipt book.

The fees paid in cash were kept in the clerk-typist's desk drawer, until such time as the clerk-typist entered the data into a spreadsheet showing the block and lot number, and sent the fees "off to [F]inance." In addition to the clerk-typist, six other employees in the office had access to the drawer where cash application fees were kept. When the homeowner or business completed the work that was the subject of the application, the clerk-typist scheduled an appointment for Patricia Hoover, the Township's Chief Housing Inspector, to inspect the premises.

With defendant's retirement date of June 30, 2008 approaching, a new clerk-typist, Maureen Bridget Kosinski, began work on June 23, 2008; defendant trained Kosinski and explained the fee collection procedures. In late summer 2008, after defendant had retired, a Township resident asked Kosinski for a refund of a cash payment for an application he had made during the time of defendant's employment. While attempting to process the refund, Kosinski discovered that although the receipt book contained a copy of the receipt defendant had issued for the cash payment, the transaction had not been entered into the spreadsheet, nor had the cash payment been sent to Finance when a deposit was made for the relevant time period.

After becoming aware of that discrepancy, Kosinski reviewed all of defendant's receipt books and compared them to the spreadsheets defendant had prepared. Kosinski concluded that more than $17,000 in fees had been accepted during defendant's tenure but not deposited. A subsequent forensic audit performed for the Township by Jeffrey Filiatreault supported Kosinski's conclusion.

Filiatreault met with Detective Robert Ortenzi of the Township's police department to report his finding that defendant committed 256 thefts of cash application fees from July 25, 2006 through June 30, 2008. Detective Ortenzi contacted the Monmouth County Prosecutor's Office and turned over the results of his investigation to Detective Arnaldo Maestrey. Maestrey concluded defendant had stolen approximately $17,155 between July 21, 2006 and June 29, 2008. Defendant was charged and indicted.

Shortly before the trial began, the State filed a motion in limine seeking to exclude evidence of a civil suit filed by Hoover against the Township, in which Hoover alleged a violation of the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8. The State argued that the civil litigation filed by Hoover was irrelevant, and therefore inadmissible pursuant to N.J.R.E. 401, and that even if marginally relevant, was excludable pursuant to N.J.R.E. 403 because such evidence would mislead the jury, confuse the issues and consume an undue amount of trial time. The State further argued that even though defendant had offered to "limit the information" she intended to produce about Hoover's lawsuit against the Township, the State would be required to call "numerous" rebuttal witnesses, which would "create a minitrial within the . . . criminal trial."

In opposition to the State's in limine motion, defendant argued that her co-workers' awareness that she intended to testify on behalf of Hoover in Hoover's civil suit against the Township, had given her co-workers a motive to "frame" her in order to destroy her credibility as a witness for Hoover. In support of that argument, defendant pointed to the fact that Hoover had heard a co-worker stating that if defendant were a convicted felon, she would not be able to testify on Hoover's behalf. From this, defendant argued that other Township employees had a "motive" to "get[] her framed for this crime and potentially convicted [so] she cannot testify in [Hoover's] civil case [against the Township]." When the judge summarized defendant's position by stating "what you're attempting to prove is third-party guilt," defense counsel answered "[c]orrect."

At the conclusion of oral argument, the judge rendered a comprehensive oral opinion in which he held that the evidence defendant sought to present concerning her possible role in Hoover's civil suit was irrelevant to the issue of motive, and was therefore inadmissible under N.J.R.E. 401. The judge reasoned:

And where I have difficulty is you're taking one action, taken by [defendant], and you are taking a huge leap from the fact that she gave a statement to the imputation of a motive to six people. And that's based upon theory. It's not based upon any evidence that you've proffered.

[M]y point is there's a disconnect . . . between the fact that she gave a statement and motive; that is, you're saying the fact that she gave a statement means that siX people had a motive to get her and the problem that I have is that there's no logical connection between the two and there's no evidence to show that because she gave a statement six people had a motive. You're theorizing that.

The constitutional right to present a defense confers upon a defendant the right to argue that another person actually committed the crime . . . [and] to introduce evidence of third party guilt if the proof offered has a rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case. This standard . . . does not require [d]efendant to provide evidence that substantially proves guilt of another, but to provide evidence that creates the possibility of reasonable doubt.

[However], a [d]efendant cannot simply seek to introduce evidence of some hostile event and leave its connection with the case to mere conjecture. There must be some link between the proffered evidence and the victim or crime.

Defendant's theory amounts to nothing more than conjecture. In the first instance, it is founded upon a premise which is not supported by any evidence. The premise upon which [d]efendant's proffer is based is that certain unidentified third parties were motivated by defendant's support of Ms. Hoover's lawsuit. This premise, which is essential to defendant's proffer, is not supported by any evidence or any rational inferences which might flow from the introduction of the proffered evidence.

Defendant attempts to impute a motive, but the mere fact that defendant supported Ms.

Hoover does not in and of itself rationally compel the conclusion that any third party was motivated to do anything, never mind set up the [d]efendant for criminal[] charges. [(Internal citations and quotation marks omitted).]

For those reasons, the judge concluded that the evidence of third-party guilt was so meager as to require its exclusion. In light of his determination that the proffered evidence did not satisfy the relevance requirement of N.J.R.E. 401, the judge did not consider the State's alternative argument that the evidence in question was also inadmissible pursuant to N.J.R.E. 403.

On April 7, 2010, Hoover was called as a defense witness. She testified to the money-handling procedures in the Code Enforcement Office, and asserted that several co-workers had the ability to access the cash that defendant had collected and placed in her desk drawer. Hoover also described the complaints that she and defendant had made to their supervisors concerning the inadequacy of such procedures. On cross-examination, and over defendant's objection, the judge permitted the State to question Hoover about a romantic relationship between defendant and Hoover's supervisor, William Nunziato.

Defendant also presented the testimony of James Burdick, who had previously worked in the Code Enforcement Office with defendant. Burdick testified that the cash drawer containing application fees was unlocked during office hours, and if the drawer were to be locked, the key was available to employees working in the office. He identified six employees, including himself and defendant, who had access to the cash drawer. Defendant rested without calling any other witnesses.

During the charge conference, the parties agreed that the judge would delete the portions of the Model Jury Charge on official misconduct that were unrelated to the conduct at issue; however, neither the parties nor the judge proposed adding language to the official misconduct jury charge that if a guilty verdict were returned on count one, the jury would be instructed to specify whether the conduct in question occurred before, or after, April 14, 2007, the date the mandatory five-year period of parole ineligibility became effective pursuant to N.J.S.A. 2C:43-6.5(a). The parties did, however, agree with the judge's suggestion that if a guilty verdict was returned on count two, the jury would be asked to specify whether the amount in question exceeded $10,000. At the conclusion of the judge's charge to the jury, neither side raised an objection to the charge or asked the judge to specifically inquire of the jury as to the timing of defendant's illegal conduct in the event of a guilty verdict. The jury returned a verdict of guilty on both counts of the indictment, and determined that the value of the property obtained exceeded $200, but was less than $10,000.

At sentencing, the judge rejected defendant's argument that the five-year mandatory period of parole supervision established by N.J.S.A. 2C:43-6.5(a) could not be applied to her because nothing in the jury's verdict, or in the proofs presented, supported a conclusion that the jury found beyond a reasonable doubt that any of defendant's illegal conduct occurred after the date the mandatory five-year parole bar became effective. Pointing to the language on the jury verdict sheet, the judge concluded that the jury had found defendant engaged in a course of conduct that continued "through" June 29, 2008. He rejected defendant's contention that additional findings of fact by the jury were needed on that subject, and imposed the five-year period of parole ineligibility required by N.J.S.A. 2C:43-6.5(a), sentencing defendant to a seven-year term of imprisonment, subject to the mandatory five-year parole ineligibility term.


We begin our analysis by turning to the two evidentiary rulings defendant challenges on appeal. In Point II, defendant maintains she was denied a fair trial when the judge granted the State's in limine motion and prohibited her from introducing evidence tending to demonstrate that the State's witnesses lacked credibility because they had a motive to obtain a criminal conviction against her. Our review of a trial court's evidentiary rulings is deferential, and we will affirm the court's determination unless the court abused its discretion. State v. McDougald, 120 N.J. 523, 577-78 (1990); see also State v. Morton, 155 N.J. 383, 453 (1998) (citations omitted) (observing that "[t]raditional rules of appellate review require substantial deference to a trial court's evidentiary rulings"), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).

As we have already noted, in the trial court, defendant opposed the State's in limine motion by arguing that evidence of the civil suit was relevant to third-party guilt because one of the other employees who had access to the cash drawer had presumably stolen the money to ensure defendant would be convicted, thereby eliminating her ability to testify as a witness for Hoover. On appeal, defendant frames the argument differently, contending the remark about her inability to testify for Hoover in Hoover's civil suit, if defendant had a criminal conviction, was admissible not as evidence of third-party guilt, but instead "to call into question the credibility of the State's witness," Kosinski. Defendant argues the evidence was relevant, and the judge committed reversible error by barring it. She also argues that the judge's focus on the issue of third-party guilt "was wildly misguided," even though, as we have noted, she agreed with the judge that "third-party guilt" was the basis upon which she sought admission of the evidence in question.

Whether viewed through the prism of third-party guilt, or analyzed under traditional relevance principles, we are satisfied the judge did not abuse his discretion in excluding the evidence of Hoover's civil suit. A criminal defendant has the right to introduce evidence of third-party guilt "if the proof offered has a rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case." State v. Sturdivant, 31 N.J. 165, 179 (1959), cert. denied, 362 U.S. 956, 80 S. Ct. 873, 4 L. Ed. 2d 873 (1960). However, a defendant cannot simply seek to introduce evidence of "some hostile event and leave its connection with the case to mere conjecture." Ibid.

Even accepting as true Hoover's proposed testimony that a co-employee believed defendant would be unable to testify for Hoover if defendant had a criminal conviction, such evidence does not "hav[e] a tendency in reason," N.J.R.E. 401, to establish that any of defendant's co-employees would engage in the extreme measure of stealing the money to eliminate defendant as a witness for Hoover. As the judge correctly observed, there is no evidence beyond mere conjecture to support such an inference. However labeled by defendant on appeal, her opposition to the State's in limine motion, both before the trial court and before us on appeal, is, in essence, a claim that someone else stole the money to frame her. Such an argument implicates the Sturdivant threshold, which the trial judge correctly found was not satisfied by defendant's proffer.

Even if, for the sake of discussion, we were to agree with defendant's contention that the evidence in question established bias on the part of the State's witnesses, and was therefore relevant under N.J.R.E. 401, its probative value was so slight as to require its exclusion under N.J.R.E. 403. As we noted previously, the judge based his ruling solely on the grounds of relevance, and never reached the issue of whether N.J.R.E. 403 would likewise require the exclusion of the evidence of Hoover's civil suit. N.J.R.E. 403 provides that relevant evidence may nonetheless be excluded "if its probative value is substantially outweighed by the risk of . . . undue delay[.]"

To address the "undue delay" problem, defendant offered to limit the evidence to these facts: Hoover had filed a civil suit; defendant was a possible witness in that civil suit; and an employee in the Code Enforcement Office had remarked that defendant could not testify for Hoover if she were a convicted felon. Despite that offer, the evidence the State would have produced in rebuttal would have been extensive and would have consumed an extraordinary amount of time. In particular, the State would have been entitled to provide testimony explaining the nature of Hoover's civil suit, the testimony defendant was expected to provide, whether any other witnesses could have provided the same evidence, whether defendant was on Hoover's witness list or had been deposed, whether it was true that a witness with a criminal conviction would be prohibited from testifying in a civil matter, the actual content of the statement defendant had provided to Hoover's attorney in the civil suit, and how, if at all, defendant's proposed testimony supported Hoover's CEPA cause of action.

We conclude that any probative value of the evidence proffered by defendant was substantially outweighed by its capacity to consume an extraordinary amount of time, thereby creating the very trial within a trial that N.J.R.E. 403 is designed to prevent. State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989).

Whether based upon a relevance determination under N.J.R.E. 401, or an undue delay analysis under N.J.R.E. 403, we are satisfied that the judge did not abuse his discretion when he barred the evidence of Hoover's civil suit. We reject the claim defendant advances in Point II.


In Point III, defendant argues that the trial judge committed reversible error when he permitted the State to ask Hoover on cross-examination if she was aware defendant was engaged in an affair with William Nunziato, who was apparently married. Hoover answered, "I don't get involved in his personal life. He's my supervisor." Hoover neither testified that defendant was involved in an affair with Nunziato nor that Nunziato was married. Nonetheless, we analyze defendant's argument on the merits because the question, despite the lack of a direct answer, might have influenced a juror to view defendant in less than favorable terms.

Because the judge overruled defendant's objection without asking the State to explain why the question was relevant, the trial record offers no explanation as to the relevance of the question. During appellate oral argument, the State explained that the question was designed to establish that Hoover was testifying on defendant's behalf only to curry favor with Nunziato because defendant was Nunziato's girlfriend and Nunziato was Hoover's boss. Defendant argues that portraying her as a "home-wrecker" was inflammatory and unfairly prejudicial.

We are not convinced this line of testimony was prejudicial to defendant. Nevertheless, its probative value was so slight in relation to its capacity for prejudice that the judge mistakenly exercised his discretion when he permitted the State to pose the question. However, we view the error as harmless because the judge instructed the jury that the mere asking of a question by an attorney does not constitute evidence, and that jurors should only consider the answers provided by a witness. We presume the jury followed the judge's instruction. State v. Feaster, 156 N.J. 1, 65 (1998) (citations omitted), cert. denied, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).

We are also satisfied that the State's case was strong and the evidence of defendant's possible amorous involvement with Hoover's married boss would have had no measurable impact on the jury's finding of guilt. In particular, regardless of whether any of the other employees in the office had access to the cash drawer, it was defendant herself who prepared the spreadsheet and it was she, and she alone, who was responsible for making the entries thereon. Any discrepancies between the receipt book, the spreadsheet and bank deposit slips would have been solely attributable to defendant's conduct. In light of the strength of the State's case, any error from the improper admission of the evidence concerning a possible affair between defendant and Nunziato was harmless, and not grounds for reversal. See State v. Macon, 57 N.J. 325, 340-41 (1971).

Having rejected the claims advanced in Points II and III, we affirm defendant's conviction and turn to the sentencing argument raised in Point I.


In Point I, defendant argues that the mandatory five-year term of parole ineligibility required by N.J.S.A. 2C:43-6.5(a) was improperly applied because nothing in either the jury's verdict or the judge's instructions to the jury, establishes that the jury necessarily found that any of defendant's unlawful conduct occurred after the date N.J.S.A. 2C:43-6.5(a) became effective.

Both the State and Federal constitutions forbid the legislative branch from passing "ex post facto" laws. U.S. Const. art. I, § 9, cl. 3; U.S. Const. art I, § 10, cl. 1; N.J. Const. art. IV, § 7, ¶ 3. This prohibition was intended to "assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed." State v. Natale, 184 N.J. 458, 490 (2005) (quoting Weaver v. Graham, 450 U.S. 24, 28-29, 101 S. Ct. 960, 964, 67 L. Ed. 2d 17, 23 (1981)). The New Jersey provision provides at least as much protection as its federal counterpart. State v. Fortin, 178 N.J. 540, 608 n.8 (2004).

A statute violates the State and federal ex post facto clauses if it "make[s] more burdensome the punishment for a crime, after its commission." State v. Muhammad, 145 N.J. 23, 56 (1996). Prior to April 14, 2007, the sentencing range for a second-degree offense was a term of imprisonment ranging from five to ten years. N.J.S.A. 2C:43-6(a)(2). Additionally, courts were empowered to impose a period of parole ineligibility ranging from one-third to one-half of the base term if clearly convinced that the aggravating factors substantially outweighed the mitigating factors. N.J.S.A. 2C:43-6(b). By instituting a mandatory five-year term of ineligibility for parole, N.J.S.A. 2C:43-6.5(a) enhanced the punishment offenders would receive if convicted of the crime of official misconduct. For that reason, N.J.S.A. 2C:43-6.5(a) "make[s] more burdensome the punishment for a crime." Muhammad, supra, 145 N.J. at 56. Unless the State established beyond a reasonable doubt that at least some portion of defendant's conduct had been committed subsequent to the effective date of N.J.S.A. 2C:43-6.5(a), the ex post facto clauses would be violated. Ibid.

Moreover, the determination of that critical fact must be made by a jury, not a judge, as judicial decision-making can violate the proscription against ex post facto laws. Natale, supra, 184 N.J. at 490. We turn now to an analysis of whether the jury made a finding that at least some portion of defendant's illegal conduct occurred after April 14, 2007, the effective date of N.J.S.A. 2C:43-6.5.

Both the State and the judge relied on the wording of the verdict sheet, which asked:

How do you find the defendant, Kimberly S. Alvarez on the charge that on or about and between July 25, 2006 through June 29, 2008, in or about the Township of Howell, did commit the crime of Official Misconduct, by committing an act relating to her office as a public servant but constituting an unauthorized exercise of her official functions, knowing that such act was unauthorized, or that she was committing such act in an unauthorized manner, with the purpose to obtain a benefit for herself or another, or to injure or deprive another of a benefit?

The State argues that by its verdict, the jury necessarily concluded that defendant's conduct continued through June 29, 2008. We do not agree.

The verdict sheet contained the following language: "on or about and between July 25, 2006 through June 29, 2008." The jury's guilty verdict signifies only that the conduct in question occurred at some point between those two dates; it does not definitively establish when between those two points in time, the conduct occurred. Nothing would have prohibited the jury from finding defendant guilty of the offense of official misconduct if the jury had found defendant's unlawful conduct began on July 25, 2006 and ended on April 13, 2007, the day before N.J.S.A. 2C:43-6.5(a) became effective. We reject the judge's conclusion that "the jury found . . . [defendant] was engaged in an ongoing course of conduct which began before and continued well beyond April 14, 2007. That is what the jury was asked and that is what the jury found beyond a reasonable doubt." The words on the verdict sheet are far too porous and imprecise to lead to the conclusion that the jury necessarily found beyond a reasonable doubt that defendant's conduct extended beyond April 14, 2007.

Moreover, as defendant correctly argues, it is clear from the jury's answer to the special interrogatory regarding value, that the jurors rejected a significant portion of the State's proofs, as the State had presented evidence that the thefts exceeded $17,000, but the jury found the thefts did not exceed $10,000. The jury's apparent rejection of a portion of the State's proofs further supports our conclusion that the guilty verdict did not establish beyond a reasonable doubt that defendant's conduct extended past April 14, 2007.

Nor are we persuaded by the State's argument that because defendant engaged in a "continuing course of conduct" the State and federal ex post facto clauses are not offended. While we agree the State's proofs demonstrated a "continuing course of conduct," this sheds no light on when the course of conduct began and ended. For that reason, the State's reliance on State v. Parker, 124 N.J. 628 (1991), cert. denied, 503 U.S. 939, 112 S. Ct. 1483, 117 L. Ed. 2d (1992), and State v. Childs, 242 N.J. Super. 121 (App. Div.), certif. denied, 127 N.J. 321 (1992), is misplaced. Parker does not address either a continuous course of conduct or an application of the ex post facto clause. Instead, in the context of a fragmented verdict argument, the Court held that a specific unanimity instruction to the jury was not required where, on the facts alleged, the acts were conceptually similar and the jury was not confused about its responsibility to return a unanimous verdict. Parker, supra, 124 N.J. at 641-42. Parker has no bearing on the issues before us.

In Childs, we addressed a defendant's claim that he could not be prosecuted for a series of thefts when some of the allegedly illegal conduct fell outside the five-year statute of limitations. Supra, 242 N.J. Super. at 126-27, 134. At trial, the State prosecuted the defendant for all of the acts, including those that fell beyond the statutory range, based on the reasoning that the thefts, taken together, constituted one continuing course of conduct. Id. at 131. We held that "a theft may be considered a constituent theft so long as the indictment for the aggregated theft is returned within five years after the last constituent theft was committed." Id. at 134 (observing that thefts aggregated pursuant to N.J.S.A. 2C:20-2(b)(4) constitute a single theft). Childs is a statute of limitations case, not an ex post facto case, and rests upon a different analytical footing than does the present matter. It is inapposite.

At appellate oral argument, the State urged us to rely on United States v. Harris, 79 F.3d 223, 229 (2d Cir.), cert. denied, 519 U.S. 851, 117 S. Ct. 142, 136 L. Ed. 2d 89 (1996). The Second Circuit held in Harris that any ex post facto problems are resolved when a statute that enhances a penalty is applied to a continuing enterprise that began prior to, but continued after, the effective date of the statute. Ibid. Harris does not support the State's position because, as we have noted, nothing in the jury's verdict establishes that the jury found beyond a reasonable doubt that defendant's conduct extended past the date that N.J.S.A. 2C:43-6.5(a) became effective.

In light of our conclusion that the jury's verdict does not establish beyond a reasonable doubt that defendant's conduct continued after April 14, 2007, the judge's application of N.J.S.A. 2C:43-6.5(a) was error, and constituted impermissible judicial fact finding that runs afoul of Natale, supra, 184 N.J. at 473. See United States v. Tykarsky, 446 F.3d 458, 478, 483 (3d Cir. 2006), (holding that where the Government's proofs established that the defendant's conduct "straddled" the effective date of a statute that enhanced the criminal penalties upon conviction, the judge erred by imposing the enhanced penalty because the jury had not been asked to specify the precise timeframe of the defendant's illegal conduct), cert. denied, ___ U.S. ___, 129 S. Ct. 1929, 173 L. Ed. 2d 1076 (2009).

We vacate the parole ineligibility term imposed pursuant to the statute and remand for resentencing. On remand, the judge may impose a sentence no greater than the seven-year sentence already imposed. The judge shall be free, however, to impose a parole ineligibility term in accordance with N.J.S.A. 2C:43-6(b) of up to one-half of the seven-year term if "clearly convinced that the aggravating factors substantially outweigh the mitigating factors."*fn1

The conviction is affirmed. Remanded for resentencing.

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